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At Summit Defense Criminal Attorneys, we have over 120 years of experience in defending these kinds of matters, and our attorneys include former prosecutors and a former police officer. If you have been accused of Resisting Arrest, your best chance of defending the case against you is by having one of our experienced attorneys on your side. You can contact one of our attorneys today to organize your first, free consultation.

RESISTING ARREST – DEFINITIONS, PENALTIES AND ANALYSIS

What is the offense of resisting arrest?

Under California Penal Code 148(a)(1), it is illegal to “resist, delay, or obstruct” a peace officer, public officer, or emergency medical technician in the execution of their duties. This offense is most commonly known as ‘resisting arrest’, but the Penal Code section covers a wider variety of behavior that interrupts the work of an officer, or makes it more difficult. And while most people think of ‘resisting arrest’ as being related to an arrest by a police officer, the law applies to a broader group of people, and includes professionals such as fire fighters, ambulance officers, and certain government officials or officers, such as park rangers.

At Summit Defense Attorneys, our team includes lawyers who are former prosecutors and a former police officer. This insider knowledge, combined with our years of defense experience, mean that we know how the other side pursues these cases. We also know how often these charges are filed for the wrong reasons. For example, police commonly use resist arrest charges to:

cover up their own wrong-doing or incompetence;

blame a defendant for his injuries, when really the police caused them;

punish a defendant who they believe has acted badly or disrespected them;

make an incident look more serious than it was; or

justify action taken against defendants in public order situations, such as at protests.

Resisting arrest is a misdemeanor offense, however, if the actions alleged against the defendant include interference with or taking of an officer’s weapon, a more serious, felony charge may be filed. Even a misdemeanor charge must be dealt with seriously, however, because a conviction risks jail time, lengthy probation, and a permanent criminal record. And in the case of offenses committed ‘against’ the police, a conviction of this nature on your record can negatively influence every future interaction with the authorities.

What if I go to court without a lawyer?

Having a lawyer is not only your right, but your best chance of fighting the case against you. Summit Defense Attorneys have handled many resist arrest cases where we have been able to influence the process by presenting mitigating evidence to the DA to have charges dismissed or reduced.

Keep in mind that a charge of resisting arrest puts you squarely against the police force. And it is common for defendants to face multiple charges in these matters, as police are rarely satisfied with a single charge when more are available on their evidence. So these cases not only have serious repercussions if you are convicted, but fighting them can be especially challenging – in many cases, the reputation and actions of one or more police officers will be called into question. Your Summit Defense attorney, however, will not shrink from the fight. We will speak to witnesses, collect evidence, and thoroughly prepare your case. This kind of work, and our reputation as winning trial attorneys, means that we are often successful in persuading the DA to dismiss charges at the pre-file stage. And if your case does go to trial, we will make sure that the judge and jury get the full picture.

What should I say to the police?

In any encounter with the police, it is best to say nothing. The law only requires that you tell them your name, address, and show some identification if requested. But this offense is unique, in that it often arises in the course of a police action, such as an arrest, or when police are engaging in public order duties, such as at sporting events or protests. In those situations, it can be very hard to remain silent – especially if you are being treated unfairly or violently by the police. But you should always try to exercise your right to silence, even in the aftermath of an arrest when you may be angry or upset.

Once it is clear that you are being arrested, you should do your best to remain silent. The police are required to tell you about your rights, which include your right to silence and your right to a lawyer. These are important rights and you should take full advantage of them. You should contact an attorney as soon as possible and have them speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

We understand that being arrested, and then going through the booking process, can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Summit Defense Attorneys defend many cases and it is almost never a good idea for a suspect to talk to the police – in fact, many people have hurt their cases by doing so.

At the very least, no matter what kind of allegation is being made against you, you should never answer any questions from the police without first getting legal advice, and you should always have an attorney present when speaking to the authorities. The early intervention of an experienced attorney is by far your most effective defense strategy.

SECTION B – ELEMENTS & DEFENSES

If I’m arrested, will I go to jail?

No, probably not – most criminal defendants are entitled to bail. In some cases, bail is not necessary and you can be released on your own recognizance. In other cases, bail will be required – and it may be set at a relatively high amount, depending on the totality of the charges you are facing.

Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you. Once it is paid, you will be free to leave the custody of the police. If you are not able to immediately secure your release, we will do everything to ensure that you are released on bail as soon as possible following an arrest. Summit Defense’s first priority will be to use every effort to keep you out of custody.

Is resisting arrest a felony or a misdemeanor?

In California, resisting arrest is a misdemeanor. A conviction still has very serious repercussions, however, including the possibility of jail time, probation, fines, and a permanent criminal record. This is why we emphasize the importance of the work we are able to do as the pre-file stage – we are often able to present evidence and arguments that influence the Prosecutor’s decision about which charges to file, or whether to file charges at all.

In every case, we are concerned with limiting our client’s exposure to the most severe penalties, and our priority is full dismissal of the charges against you. We are often successful in that in resist arrest cases, especially where we can demonstrate that the police behaved improperly or unlawfully. And even in cases where we are not able to achieve dismissal at the pre-file stage, we are often able to have the DA agree to file lesser charges, including less serious offenses that can be dealt with as infractions.

What evidence will the Prosecutor use to try to prove a charge of resisting arrest against me?

To establish a charge of resisting arrest under Penal Code 148(a)(1) against you, the Prosecutor must prove the following elements beyond reasonable doubt:

that a peace officer, public officer, or emergency medical technician was lawfully performing, or attempting to perform, his or her duties;

that you willfully resisted, obstructed, or delayed the officer in the performance of those duties; and

that when you acted, you knew, or reasonably should have known, that the person was a peace/public officer or emergency medical technician performing, or attempting to perform, his or her duties.

Peace officer, public officer, or emergency medical technician

Resist arrest charges are most often filed in cases where the alleged victim is a police officer. However, the category of ‘peace officer’, and the other protected categories of public officer and emergency medical technician, is much more broad, and includes people such as:

fire fighters;

ambulance officers;

lifeguards;

traffic officers;

animal control officers; and

custodial officers.

What is important, though, is the defendant’s knowledge of the alleged victim’s position – which is discussed in relation to the third element of the offense.

Lawfully performing the duties of a peace officer etc.

The Prosecutor must prove that, at the time of the offense, the officer was lawfully performing or attempting to perform their professional duties. This could include things such as:

an ambulance officer providing medical treatment to an injured person;

a traffic officer directing traffic at an intersection;

a prison guard escorting inmates.

This element is a vital aspect of the offense because only officers who are actually in the course of doing their job are covered. The reverse of this is that, if an officer is not doing their job, or is acting outside of the law, this section does not cover them. In the case of police officers, this is often a very important distinction to make, and in the course of defending these cases we are never afraid to question the lawfulness of an officer’s actions. For example, if a police officer is actually trying to make an illegal arrest, then the defendant could not be found guilty of resisting arrest.

The California Criminal Jury Instructions state that a “peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties”.[1] The Jury Instructions go on to provide that it is the Prosecutor that must prove beyond reasonable doubt that the officer was lawfully performing their duties.[2]

As you can see, there is an overarching requirement that the officer is engaged in ‘lawful’ activities, and if the officer was acting unlawfully, the defendant cannot be found guilty. We discuss this kind of defense in more detail in the ‘Defenses’ section below, and we detail the rules and standards of police behavior on this section of our site.

Willfully

To do something willfully means to do it on purpose, and not accidentally or inadvertently. It doesn’t matter if the defendant didn’t mean to break the law or hurt someone, just as long as the act was intentional.

For example, imagine that you are hurrying out of a store carrying a lot of bags. You accidentally run into a police officer who is running past, and drop all your bags. A second officer is also running past, and is forced to slow down to avoid a collision, and to get around all of the things that you dropped on the sidewalk. It turns out that the officers were chasing a person who they believed had just robbed a nearby convenience store but, because of the collision with you, they are unable to catch up with the suspect.

The officers were undoubtedly doing their job in chasing after the suspect, and doing so lawfully. Further, there is no doubt that what you did delayed them in their pursuit of the suspect. However, you did not do that intentionally – your running into the first officer was a complete accident. So, even though you have delayed or obstructed the police in the performance of their duties, you did not do it on purpose, so you could not be guilty of this offense.

Resisted, obstructed, or delayed the officer

The Prosecutor must prove that the defendant did at least one thing that fits the definition of resisting, obstructing, or delaying.[3]

Most people think that resisting arrest means to do something physical and active, like pushing away or struggling against a police officer, or running away from the police. This offense, however, covers a broader scope of activities, and even something quite passive or only verbal – such as telling the police a false name, or intentionally going limp so as to force an officer to drag or carry you to make a lawful arrest – is enough to satisfy this element.

However, it is important to contrast this with the fact that citizens are allowed to question and challenge police actions. As the Supreme Court noted in City of Houston v. Hill, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”[4]

The law distinguishes between the Constitutional freedom of citizens to free speech, versus the prohibition on the use of ‘fighting words’, or words that pose an immediate threat of violence. This means that it is NOT illegal to swear at the police, to criticize them, or to question their actions, but it IS illegal to threaten an officer, to encourage others to be violent towards the police, or to refuse to comply with a lawful request or order.

Knew, or reasonably should have known, that the person was an officer who was performing their duties

This element involves judging the defendant’s behavior from an objective standpoint – that is, what would a reasonable person have known, in the circumstances? In some of these cases, this is an easy element for the Prosecutor to prove. Things that may indicate this include:

if an officer is wearing their uniform;

if the officer is doing some kind of obvious duty associated with their role, such as making an arrest or writing a ticket;

if the officer is driving or got out of an official vehicle, such as a police car, or an ambulance.

If factors like this exist, then it can be easy to prove that the defendant knew – or at least reasonably should have known – that the person was an officer doing their job.

In other cases, however, this element is not so straightforward. For example, in one case that we defended, a plain-clothes police officer confronted our client on the street just after he had left a nightclub. Our client was drunk, but the officer thought that our client may have been affected by illegal drugs, and decided to search him. The officer and our client were engaged in a brief argument, with our client protesting the fact that the officer was even speaking to him. The officer then pushed him up against a wall, and because our client continued to resist what was happening, the officer pulled out handcuffs and arrested him.

It turned out that our client had no idea that the person was a police officer until the officer pulled out the handcuffs and told him about his rights – in the course of the initial confrontation and argument, the officer had forgotten to identify himself! This meant that there was no way our client could know that the person was a police officer, and he was certainly under no obligation to let him touch him, let alone search him. The Prosecutor could not prove this element of the offense, and we were eventually successful in having all of the charges against him withdrawn.

Other offenses related to ‘resisting arrest’.

Within California Penal Code 148, there are actually several other offenses that relate to interfering with the lawful duties of a peace/public officer, including police officers.

148(a)(2) – Interfering with transmission over a public safety radio frequency

This offense is a misdemeanor, and makes it illegal to “knowingly and maliciously” interrupt, disrupt, impede, or otherwise interfere with the transmission of a communication over a public safety radio frequency. This covers transmissions such as those via police radio, and also communications of organizations such as firefighters and ambulance services.

This section specifies that if, in the course of resisting an officer under 148(a)(1), a person takes a weapon that is not a gun from an officer, then the offense can be treated more seriously. This is a ‘wobbler’, meaning that the charge can be filed as either a felony or a misdemeanor.

If, in the course of resisting an officer under 148(a)(1), a person takes that officer’s firearm from them, they can be charged with this felony offense.

148(d) – Removing or taking firearm from officer

This offense does not have to be committed in the course of resisting, obstructing, or delaying the officer in the course of their duties. It is the more simple offense of taking, or attempting to take, the officer’s firearm. This offense is a ‘wobbler’, meaning it can be charged as either a felony or a misdemeanor.

Related offenses

In cases where someone is charged with resisting arrest, it is common for other charges to be considered, depending on the facts of the case. This can be, firstly, because the police believe that they have evidence that more than one offense was committed. For example, it is very common for the police to allege that the defendant committed a ‘battery of a police officer’ either before, or during, the time when they were resisting arrest. When you think about it, this makes sense – the officer will usually need some other offense that they were arresting the defendant for, if the defendant is to be guilty of resisting arrest!

In other cases, it might be that the evidence against the defendant for the resisting arrest charge is not particularly strong. Depending on the circumstances, the Prosecutor might file additional charges, as a kind of back up. If the police allege that the ‘resisting arrest’ occurred during a protest, for example, they might also charge the defendant with disturbing the peace. In some cases where there is room for negotiation, the Prosecutor may not be willing to drop the charges altogether, but they may accept a plea to a lesser charge – which could save you time in prison, or the scar of a conviction permanently on your record. In those situations, however, you need a lawyer from Summit Defense Attorneys to negotiate with the Prosecutor on your behalf – we are experts in this area of the law, and we can often intervene on your behalf before charges are formally filed.

Assault

There are various assault offenses under Penal Code 240 and 241. ‘Simple’ assault is always a misdemeanor, and usually treated less severely than battery.

Battery

There are also various battery offenses, under Penal Code 242 and 243. ‘Simple’ battery – that is, one that does not result in injury and where the victim was not in a class of protected people – is always filed as a misdemeanor, and is treated less seriously than battery on a police officer. However, in cases under Penal Code 243(d) where serious bodily injury is alleged, the offense is elevated to a felony.

Battery of a police officer

This is a kind of battery offense, under 243(b) – a misdemeanor – or 243(c)(2) – a felony. This is very commonly charged alongside ‘resist arrest’, because the police claim that the defendant committed a battery, and then resisted when the officer/s tried to arrest him or her.

Evading arrest

Under the Vehicle Code, there are two offenses that make it illegal to use a car (or other vehicle) to escape or run away from police who are trying to arrest you. Under Vehicle Code 2800.1 – misdemeanor evading arrest, – it is a crime to flee a police officer who is pursuing you with the intent of avoiding arrest. Under Vehicle Code 2800.2 – felony evading arrest – it is a more serious crime to flee a police officer who is pursuing you by driving recklessly, with the intent of avoiding arrest.

Disturbing the peace

The offense of disturbing the peace is found in Penal Code 415. It relates to activities such as unlawful fighting, unreasonably loud noise, and using offensive language – so it is not directly related to the offense of resisting arrest. However, it can be useful when negotiating, especially if the allegations against the defendant relate to them being aggressive to the police in public, or using ‘fighting words’ towards he officer. It is a relatively minor offense that is filed as a misdemeanor and, in some cases, can be dealt with as a less serious infraction. This means that it is often a charge that is considered when negotiating a plea bargain.

What defenses can I use to fight a charge of resisting arrest?

I didn’t do it!

Unfortunately the police, and other officers, do falsely accuse people of this offense. Maybe you did not resist or obstruct the officer at all, maybe what you did was an accident, or maybe the officer misinterpreted your actions – whatever really happened, we will work to clear your name.

At Summit Defense Attorneys, we know from experience that victims in all kinds of cases lie, and that innocent people have been falsely accused and convicted as a result. In cases where the alleged ‘victim’ is a police officer, then there can be compelling reasons for an officer to lay a trumped-up charge – they may need to justify their own bad reaction, or violence against someone, or they may need to protect another officer. In other cases, officers accuse defendants that they don’t like, or that they are angry or annoyed with for disobeying or disrespecting them.

Countless examples of this kind of police behavior are seen every year in the United States. One recent public example was the case of an Arizona State University professor who was violently arrested by a police officer, after the officer stopped her for allegedly jaywalking, and questioned why he approached her and the way he spoke to her. (Video and a report of the arrest can be seen here: Professor Jaywalking Arrest – CNN). Even though this matter has not been finalized in court yet, it is clear from the police video that the officer used a significant degree of force that was well out of proportion with the alleged offense the Professor committed.

As we noted earlier, resisting an officer can be a very difficult charge to defend, precisely because it is usually alleged to have been committed against a police officer. And in countless cases, we have seen the police ‘close ranks’ and all tell the same story in their statements. The expertise of Summit Defense’s lawyers, however, means that we can deconstruct that evidence, find the holes in the police case, and break through that kind of police collusion.

It was an accident!

One of the elements of this offense requires the Prosecutor to prove that you acted willfully in resisting, obstructing, or delaying the officer. If your conduct, however, was not on purpose or was an accident, then the charge cannot be proved.

We have represented clients who have been charged with resisting arrest, even though their actions were not intentional. This is not uncommon in cases where the interaction between the officer and the defendant is already quite heated, or where the arrest is causing the defendant some pain or discomfort. In a case we defended, our client was participating in a protest in Oakland. The atmosphere became heated when a large number of police arrived on the scene, and some members of the crowd threw objects such as bottles and rocks at the police. Our client was not one of those people, but he was very vocal about his disapproval of the police presence, and was yelling complaints that they were threatening, that protest was the people’s right, and so on.

The officer closest to our client took objection, and told our client to ‘back off and shut up’ or he would be told to leave. Our client did not stop yelling, and continued to participate in the protest. He saw scuffles between the police and other protesters occurring around him, and when he saw one person being arrested very close to him, he moved towards that incident, questioning whether the arrest was proper or necessary. The officer that had previously told our client to ‘back off and shut up’ grabbed the back of his shirt and told him to ‘keep out of it’. Our client continued to argue, pointing out that he thought the person being arrested had done nothing wrong and was just part of the protest. The officer then said, “alright, you’re obstructing a police officer now, you’re under arrest” and immediately pulled our client’s hands behind his back. Our client did not fight the officer, but when handcuffs were applied he jerked away from the officer, and said that he was in pain. As a result of that, the officer charged him with resisting arrest.

When he contacted us, our client told us that he had jerked away from the officer because the cuffs had been applied too tightly, and that had caused him pain. He agreed that he continued to be angry and question the police actions, but that he didn’t physically resist the arrest, or do anything else wrong.

We began working on the case, and found that several cellphone videos of the protest – and police activities at the protest – had been uploaded on social media sites. We immediately saved those, and were able to find one where the officer in question in our client’s case was depicted yelling at protestors. Our client was a member of a community organization that had encouraged members to participate peacefully in the protest, and we were able to collect evidence from other members about our client’s previous peaceful participation in protests, and the fact that he had been part of discussions encouraging members to act within the bounds of the law during the protest. Finally, our client had taken a photo of his wrists after he was released from police custody, and it showed marks on his wrists where the cuffs were applied.

We took all of this information to the DA, and were able to demonstrate the difficulty that they would have in proving that our client acted ‘willfully’ when he jerked his hands away from the officer while being cuffed. Further, the officer in question had included nothing about his own bad behavior in his original statement – but we were able to show otherwise. Given the evidence that we had amassed, and the condemnation of the police behavior at the protest that our defense would entail, the Prosecutor was persuaded that no charges should be filed against our client.

Insufficient evidence and reasonable doubt

One of the fundamental tenets of the criminal law is that the prosecution must prove all of the elements of the charge beyond reasonable doubt. Just because there is not enough evidence to satisfy this standard, however, does not always mean that charges are not filed. In these kinds of cases especially – where no proof of injury is required, and where the case is based on the word of a police officer – it is easy for charges to be filed without sufficient proof.

Summit Defense attorneys include an ex-police officer and ex-District Attorneys, and this experience on the other side means that we are aware how often charges are filed in weak cases, or just based on the word of one or two police officers. We also know how defendants can feel defeated in these cases – a common reaction is, “Who is going to believe my word against the police?” But we are on your side, and we will not let baseless charges stand because we always insist on holding the prosecution to the very high standard and burden of proof required.

A lack of evidence sufficient to support the charge is one of the most common defenses relied upon. Without that, reasonable doubt is raised and charges must fail. And as demonstrated by the case of our client at the protest, described above, the police do not always tell the full story, even in their own statements and evidence. If the evidence that the Prosecutor is relying on in your case is not adequate, Summit Defense Attorneys will challenge the case and make sure that you are not unjustly convicted.

The officer was not acting lawfully

One of the most important elements of this offense is that the officer in question must have been lawfully performing, or attempting to perform, his or her duties. This means that, for example, if the officer trying to arrest you was not making a lawful arrest, then you cannot be found guilty of resisting arrest.

The California Criminal Jury Instructions put it this way:

“The People have the burden of proving beyond a reasonable doubt that

[the officer] was lawfully performing his or her duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty … A peace officer is not lawfully performing his or her duties if he or she

is unlawfully arresting or detaining someone, or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.”[5]

To mount a defense along these lines means that you must directly call into question the behavior of the officer or officers in question – this defense alleges that the police engaged in misconduct or unlawful behavior. To do this effectively, you need an attorney who is an expert in not only criminal defense, but also knows the rules and laws about police procedures inside out. Summit Defense Attorneys include an ex-police officer, as well as former prosecutors, so we know how these cases work from both sides – and therefore, how best to defend them and win.

There are standards and rules that govern everything that the police do, and how they are required to act when carrying out their duties. We explain these standards and rules in detail in this section of our site, and we will discuss the issue of unreasonable or excessive force below, in the section on self-defense. But, for example, consider when a police officer is making an arrest. The law states that, “A peace officer may legally arrest someone either on the basis of an arrest warrant, or if he or she has probable cause to make the arrest. Any other arrest is unlawful.”[6]

In a recent case we defended, our client was arrested unlawfully. The police were looking for his brother and another young man to question them in relation to a robbery that had been committed earlier that week. Two police officers attended the house where our client lived with his brother, and other family members. The police did not have an arrest warrant for anyone, nor a warrant to enter the premises. When our client answered the door, he told the police to, “go away and leave us the hell alone” unless they had a warrant. When the police asked about the whereabouts of the brother, our client told them he had “no [expletive] idea”, and swore at the officers. The police took exception to that, and one of the officers said, “You think you’re real smart, don’t you? I think I can smell marijuana coming from inside your house. Do you want to tell us where your brother is, or should we just come in and search the place for drugs?”

Our client became upset at these threats, and moved outside the front door. He again told the police to leave if they did not have a warrant. The police then grabbed our client, put his hands behind his back, and cuffed him. As they were doing this, they told our client that they could “definitely smell drugs on him” and were “securing him” so as they could search him. Our client initially evaded the hold of one officer, but the other grabbed him by the shoulder and neck. He fought against that officer, grabbing at and hitting his hands. The other officer grabbed his hands, wrested them behind his back, and managed to cuff him. He continued to struggle against the cuffs, but while he was cuffed, they patted him down and found nothing on him. The police then took him down to the station and booked him for resisting arrest, and assaulting the police officer.

Once we began working on this case, it became apparent to our attorney that the police had no right to arrest our client in the manner that they did. They did not have a warrant, and they had been asked to leave the property. Further, they had escalated the situation by provoking our client and – given our client’s assurances that his mother did not allow anyone to smoke marijuana in the house – we were skeptical of the police’s flimsy claim to have been searching our client for drugs. Unfortunately, our client had a juvenile record, and the DA did not accept our client’s version of events, so she stubbornly refused to withdraw the charge in this case.

We fought the matter at trial by:

subjecting the police to rigorous cross-examination to expose the lies and inconsistencies in their statements;

displaying photos of the bruising and injuries that our client suffered at the hands of the police, as well as medical evidence;

revealed evidence that we had subpoenaed from internal police records to show that complaints had previously been made about both of these officers by members of the public; and

called evidence from several family members who had heard the interaction from inside the house, to tell the court what had really happened.

We exposed to the judge and jury the improper behavior and the arrogance of the police, the way in which they had harassed our client at his home, and successfully argued that our client could not be guilty because he was only reacting to the unlawful police actions. As a result, the jury acquitted our client.

I was acting in self-defense/defense of another person against excessive force!

In resist arrest cases, the issue of self-defense most often arises when a person is trying to defend themselves from the use of excessive or unreasonable force by the police. This is not uncommon – one study by the San Jose Mercury News uncovered the shocking fact that 70 percent of resisting arrest cases involved force. Summit Defense Attorneys have defended many cases where our client acted in self-defense, but was charged with resist arrest and other offenses against the police.

As in the defense of unlawful police action, raising self-defense calls into question the propriety of police behavior. There are two situations in which a claim to self-defense usually arises:

if the officer was doing something unlawful, such as making or attempting to make an unlawful arrest; or

if the officer was using unreasonable or excessive force.

We have already discussed, above, how a defendant cannot be guilty of resisting an officer if the officer was doing something unlawful, such as making an unlawful arrest. This is because the officer is not engaged in the ‘lawful performance’ of his or her duties. Those cases may also raise issues of self-defense, because a defendant is entitled to defend him or herself against an unlawful arrest. Similarly, a defendant is entitled to defend themselves against an officer who is using unreasonable or excessive force, which is the defense we will focus on in this section.

The basic law of self-defense or defense of another remains the same in these cases.[7] Once you raise the issue as a defendant, the Prosecutor must prove beyond reasonable doubt that you were not acting in self-defense. The specific rule in resisting arrest cases states that, “If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest, or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself.”[8]

What is ‘reasonable force’? As set out in the Judicial Council of California Criminal Jury Instructions, the law provides that a defendant being arrested uses reasonable force when he or she:

uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and

uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.[9]

In deciding whether the defendant’s actions were reasonable, the court must look at all of the circumstances. In many resist arrest cases, the circumstances of the encounter elevate the emotion and fear – the police can be threatening, especially to people who have previously had bad experiences with the police, or whose communities are targeted by law enforcement activities. Other circumstances could include a crowded public event or protest, a heated argument or dispute with the officers before they try to make an arrest, and the police using particularly aggressive language or tactics – consider the cases of our client who was arrested at the protest in Oakland, or the one who was unlawfully arrested at his house when the police were looking for this brother. If a case like these goes to trial, your attorney will make sure that the judge or jury is aware of all of the relevant factors so as they can assess the reasonableness of your response.

So, the law very clearly states that it is not an offense to use force to defend yourself against a police officer who is being heavy-handed or unreasonably violent towards you. This is because, even though the police are allowed to use force when making arrests, detaining people, and otherwise carrying out their duties, they are only allowed to use force that is reasonable in the circumstances. Unfortunately, it is not uncommon for police to step over that line – they have many weapons at their disposal, there are usually more of them than the defendant/s, and they are trained to physically restrain people. All of this power can spill over into brutal treatment of defendants. But when that happens, the police are not ‘doing their duty’ – so you can’t be found guilty if you defend yourself.

In the case of People v. Soto (1969)[10], the Court stated, “it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest… Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime.” So, if it is shown that you were using reasonable force to protect yourself against the unreasonable or excessive force of a police officer, you must be found not guilty.

In many cases where we are able to bring this kind of police misconduct and incompetence to the attention of the DA, we are able to persuade them to drop the case altogether. However, if we are not successful in persuading the DA to drop the matter at the pre-file stage, we will fight the case at trial.

Consider the example from the previous section above, where the police unlawfully arrested our client after they came to his house looking for his brother. Our client was charged with assaulting one officer, and also with resisting arrest. Besides defending the matter on the basis that the actual arrest was unlawful, we also raised the issue that our client was acting in self-defense when he was grabbing at and hitting the hands of the officer who was restraining him. We were able to establish this defense on two fronts – first of all, that he was attempting to defend himself from an unlawful arrest, and second, that he was defending himself against the use of excessive force by the police. This was especially so considering the violent way in which the police grabbed him, without warning, and violently wrenched his hands behind his back and into the cuffs. The jury accepted the defenses that we raised, and our client was acquitted of all charges.

SECTION C – PENALTIES

What are the penalties for resisting arrest?

The penalties in these cases vary widely, and will always depend on the exact circumstances of the behavior the defendant is accused of. Whether or not the defendant has a criminal history, or a history of previous violence offenses, will also affect the severity of the penalty imposed.

Of course, penalties are only of concern if you are actually convicted of an offense. At Summit Defense, we will do everything possible to avoid a conviction – our aim in every case is always the complete dismissal of all charges. However, in cases where a conviction cannot be avoided, Summit Defense Attorneys will fight to minimize consequences. In many cases we can do things like:

Get charges reduced to lesser offense/s;

Achieve a sentence of a short probation period;

Seek counseling and jail alternatives; and

Enroll our clients in diversion programs.

If, despite our best efforts, you are convicted of resisting arrest, the penalties are:

one year in county jail;

a fine of up to $1,000; or

both a fine and jail time.

If you are convicted of a more serious version of resisting/obstructing/delaying an officer – where it is alleged that you took, or attempted to take, a weapon or firearm from the officer, you may be facing a felony conviction. The maximum penalties in those cases are:

a fine of up to $10,000;

imprisonment in the State prison for 16 months, 2 , or 3 years; or

both a fine and imprisonment.

Keep in mind that these are the maximum possible penalties. In all cases, the judge will consider various factors before passing sentence. These include the nature of the offense itself and any criminal history, and the specific circumstances of each case. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.

There are some common factors that can occur in resisting arrest cases – for example, if alcohol or drug use was associated with the offense, and you voluntarily enter into a treatment program, then your attorney may persuade the judge to take that into account as a mitigating circumstance. On the other hand, if the offense was committed in the course of the officer trying to arrest you for some other criminal activity, then that might be considered an aggravating circumstance. But every case is different and every defendant is unique – an experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.

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Summit Defense is Northern California's largest Criminal Defense Law Firm that only represents individuals charged with or accused of a crime. The Summit Defense legal team includes three former prosecutors, a former Police Officer, a Board Certified Appellate Specialist and attorneys who graduated from the country's top law schools.